HANMANT TIMAJI DESAI Vs. RAGHAVENDRA GURURAO DESAI

JUDGEMENT

(1.) This appeal arises out of an application made by the decree-holder to execute the decree passed on an award. Originally in 1904 a simple mortgage bond wan passed by defendant No. 1 in favour of the plaintiff and his brother for Rs. 6, 500. The; disputes between the parties as to this bond were referred to an arbitrator and an award was made. Subsequently on the application of the plaintiff which was registered as a suit a decree was passed in terms of the award. Under that decree the defendants were to pay Rs. 14,000 in eleven instalments. The first ten instalments were to be annual instalments of Rs. 1,300 each and the last instalment was to be of Rs. 1,000. The first instalment was to be paid on the 1st of August 1916 and the other instalments were to be paid on the 1st of August every following year. The decree further provided that in case of default by defendants to pay any two instalments out of tin said instalments, the said instalments should be paid within six months from the date of default of the second instalment; and in case of default to pay the said instalments within six months accordingly plaintiff do recover the whole of the amount, viz., the amount of the said two instalments and the subsequent instalments remaining unpaid on that day, together with costs, by sale of the property mentioned in the simple mortgage bond. The defendants paid the first instalment on the 1st of August 1916, and the present darkhast was filed in July 1918 to recover the second instalment payable on the 1st of August 1917 with interest by sale of a part of the mortgaged property. The part of the mortgaged property was specified in the darkhast, and it was stated in the darkhast that the instalment payable on the 1st of August 1918 had been already, paid to the decree-holder. The defendants objected to the sale of a part of the mortgaged property.

(2.) The First Class Subordinate Judge, who dealt with this darkhast, allowed execution to proceed on the footing that the defendants were personally liable to pay the sum of Rs. 1,300 and that it was open to the decree-holder to realize that amount by the sale of the property mentioned in the darkhast not as part, of the mortgaged property, but as property belonging to the judgment-debtors.

(3.) From this order the present appeal is preferred to this Court, and it is urged on behalf of the appellant that the darkhast ins premature.